[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015-2016
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Social Services Legislation Amendment
(Enhanced Welfare Payment Integrity)
Bill 2016
No. , 2016
(Social Services)
A Bill for an Act to amend the law relating to
family assistance, paid parental leave, social
security and student assistance, and for related
purposes
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 3
Schedule 1--Departure prohibition orders
4
Part 1--Main amendments
4
A New Tax System (Family Assistance) (Administration) Act 1999
4
Paid Parental Leave Act 2010
14
Social Security Act 1991
25
Student Assistance Act 1973
36
Part 2--Other amendments
47
A New Tax System (Family Assistance) Act 1999
47
Student Assistance Act 1973
47
Part 3--Application provisions
48
Schedule 2--Removal of 6-year limit on debt recovery
49
Part 1--Amendments
49
A New Tax System (Family Assistance) (Administration) Act 1999
49
Paid Parental Leave Act 2010
50
Social Security Act 1991
50
Student Assistance Act 1973
51
Part 2--Application provisions
52
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
1
A Bill for an Act to amend the law relating to
1
family assistance, paid parental leave, social
2
security and student assistance, and for related
3
purposes
4
The Parliament of Australia enacts:
5
1 Short title
6
This Act may be cited as the Social Services Legislation
7
Amendment (Enhanced Welfare Payment Integrity) Act 2016.
8
2 Commencement
9
(1) Each provision of this Act specified in column 1 of the table
10
commences, or is taken to have commenced, in accordance with
11
2
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
Part 1
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) 1 July 2016.
3. Schedule 1,
Part 2
The later of:
(a) the start of the day after this Act receives
the Royal Assent; and
(b) immediately after the commencement of
Part 1 of Schedule 2 to the Norfolk
Island Legislation Amendment Act 2015.
4. Schedule 1,
Part 3
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) 1 July 2016.
5. Schedule 2
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) 1 July 2016.
Note:
This table relates only to the provisions of this Act as originally
4
enacted. It will not be amended to deal with any later amendments of
5
this Act.
6
(2) Any information in column 3 of the table is not part of this Act.
7
Information may be inserted in this column, or information in it
8
may be edited, in any published version of this Act.
9
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
3
3 Schedules
1
Legislation that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
Schedule 1 Departure prohibition orders
Part 1 Main amendments
4
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
Schedule 1--Departure prohibition orders
1
Part 1--Main amendments
2
A New Tax System (Family Assistance) (Administration) Act
3
1999
4
1 Subsection 3(1)
5
Insert:
6
departure authorisation certificate means a certificate under
7
Subdivision D of Division 5 of Part 4.
8
departure prohibition order means an order under Subdivision A
9
of Division 5 of Part 4 (including such an order varied under
10
Subdivision C of that Division).
11
2 At the end of Part 4
12
Add:
13
Division 5--Departure prohibition orders
14
Subdivision A--Secretary may make departure prohibition
15
orders
16
102A Secretary may make departure prohibition orders
17
(1) The Secretary may make an order (a departure prohibition order)
18
prohibiting a person from departing from Australia for a foreign
19
country if:
20
(a) the person has one or more debts to the Commonwealth
21
under this Part; and
22
(b) there are not arrangements satisfactory to the Secretary for
23
the one or more debts to be wholly paid; and
24
(c) the Secretary believes on reasonable grounds that it is
25
desirable to make the order for the purpose of ensuring that
26
the person does not depart from Australia for a foreign
27
country without:
28
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
5
(i) having wholly paid the one or more debts; or
1
(ii) there being arrangements satisfactory to the Secretary
2
for the one or more debts to be wholly paid.
3
Matters to be taken into account in making order
4
(2) Before making an order under this section, the Secretary must have
5
regard to the following matters:
6
(a) the capacity of the person to pay the one or more debts;
7
(b) whether any action has been taken to recover any such debt,
8
and the outcome of the recovery action;
9
(c) the length of time for which any such debt has remained
10
unpaid after the day on which it became due and payable;
11
(d) such other matters as the Secretary considers appropriate.
12
Form of order
13
(3) A departure prohibition order must be in a form approved by the
14
Secretary.
15
Subdivision B--Departure from Australia of debtors
16
prohibited
17
102B Departure from Australia of debtors prohibited
18
A person must not depart from Australia for a foreign country if:
19
(a) a departure prohibition order in respect of the person is in
20
force, and the person knows that the order is in force, or is
21
reckless as to whether the order is in force; and
22
(b) the person's departure is not authorised by a departure
23
authorisation certificate, and the person knows that the
24
departure is not authorised by such a certificate, or is reckless
25
as to whether the departure is authorised by such a certificate.
26
Penalty: Imprisonment for 12 months.
27
Schedule 1 Departure prohibition orders
Part 1 Main amendments
6
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
Subdivision C--Other rules for departure prohibition orders
1
102C Notification requirements for departure prohibition orders
2
(1) This section applies if the Secretary makes a departure prohibition
3
order in respect of a person.
4
Notifying person of order
5
(2) The Secretary must notify the person that the order has been made.
6
(3) The notice must be in a form approved by the Secretary and must
7
be given as soon as practicable after making the order.
8
Notifying other persons of order
9
(4) Unless the Secretary is satisfied that the person is an Australian
10
citizen, the Secretary must give the Secretary of the Department
11
administered by the Minister administering the Migration Act 1958
12
a copy of the order, and information likely to facilitate
13
identification of the person, for the purposes of administering that
14
Act.
15
(5) The Secretary must also give a copy of the order, and information
16
likely to facilitate identification of the person for the purposes of
17
this Division, to such other persons as the Secretary considers
18
appropriate in the circumstances, being persons declared in an
19
instrument under subsection (6).
20
(6) The Secretary may, by legislative instrument, declare persons for
21
the purposes of subsection (5).
22
(7) The Secretary must give a copy of the order or information under
23
subsection (4) or (5) as soon as practicable after making the order.
24
102D Operation of departure prohibition order
25
(1) A departure prohibition order comes into force when it is made,
26
and continues in force until it is revoked, or until it is set aside by a
27
court.
28
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
7
Note:
Subdivision E deals with appeals to the Federal Court of Australia or
1
the Federal Circuit Court of Australia against the making of departure
2
prohibition orders.
3
(2) However, a departure prohibition order in respect of a person is not
4
in force during any period when a deportation order in respect of
5
the person is in force under the Migration Act 1958.
6
102E Revocation and variation of departure prohibition orders
7
(1) The Secretary must revoke a departure prohibition order in respect
8
of a person if:
9
(a) the person no longer has any debts to the Commonwealth
10
under this Part; or
11
(b) there are arrangements satisfactory to the Secretary for the
12
one or more debts the person has to the Commonwealth
13
under this Part to be wholly paid; or
14
(c) the Secretary is satisfied that the one or more debts the
15
person has to the Commonwealth under this Part are
16
completely irrecoverable.
17
(2) The Secretary may revoke or vary a departure prohibition order in
18
respect of a person if the Secretary considers it desirable to do so.
19
(3) A revocation or variation, under this section, of a departure
20
prohibition order may be:
21
(a) on application by the person in a form approved by the
22
Secretary; or
23
(b) on the Secretary's own initiative.
24
102F Notification requirements for revocations and variations
25
(1) If the Secretary revokes or varies a departure prohibition order in
26
respect of a person, the Secretary must give notice of the
27
revocation or variation to:
28
(a) the person; and
29
(b) each person to whom a copy of the departure prohibition
30
order was given under subsection 102C(4) or (5).
31
(2) If:
32
Schedule 1 Departure prohibition orders
Part 1 Main amendments
8
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
(a) a person makes an application under paragraph 102E(3)(a)
1
for the revocation or variation of a departure prohibition
2
order; and
3
(b) the Secretary refuses to revoke or vary the order;
4
the Secretary must give notice of the refusal to the person.
5
(3) A notice under this section must be in a form approved by the
6
Secretary and must be given as soon as practicable after the
7
decision concerned is made.
8
Subdivision D--Departure authorisation certificates
9
102G Application for departure authorisation certificate
10
(1) A person in respect of whom a departure prohibition order is in
11
force may apply for a certificate (a departure authorisation
12
certificate) authorising the person to depart from Australia for a
13
foreign country.
14
(2) The application must be in a form approved by the Secretary.
15
102H When Secretary must issue departure authorisation certificate
16
(1) This section applies if a person makes an application under
17
section 102G for a departure authorisation certificate.
18
(2) The Secretary must issue the departure authorisation certificate if
19
the Secretary is satisfied:
20
(a) that, if the certificate is issued:
21
(i) it is likely that the person will depart from Australia and
22
return to Australia within a period that the Secretary
23
considers appropriate; and
24
(ii) it is likely that, within a period that the Secretary
25
considers appropriate, the Secretary will be required by
26
subsection 102E(1) to revoke the departure prohibition
27
order in respect of the person; and
28
(b) that it is not necessary for the person to give security under
29
section 102J for the person's return to Australia.
30
(3) If the Secretary is not satisfied as mentioned in subsection (2), the
31
Secretary must issue the departure authorisation certificate if:
32
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
9
(a) the person has given security under section 102J for the
1
person's return to Australia; or
2
(b) if the person is unable to give such security, the Secretary is
3
satisfied:
4
(i) that the certificate should be issued on humanitarian
5
grounds; or
6
(ii) that refusing to issue the certificate will be detrimental
7
to Australia's interests.
8
102J Security for person's return to Australia
9
(1) A person may give such security as the Secretary considers
10
appropriate by bond, deposit or any other means, for the person's
11
return to Australia by such day as is agreed by the person and the
12
Secretary and is specified in the departure authorisation certificate.
13
(2) The Secretary may substitute a later day for the day mentioned in
14
subsection (1):
15
(a) on application by the person in a form approved by the
16
Secretary; or
17
(b) on the Secretary's own initiative.
18
(3) The Secretary may refuse an application by a person to substitute a
19
later day if:
20
(a) the person refuses to increase the value of the security
21
already given to a level that the Secretary considers
22
appropriate; or
23
(b) the person refuses to give such further security as the
24
Secretary considers appropriate; or
25
(c) the Secretary considers that it would not be appropriate to
26
substitute the later day.
27
102K What departure authorisation certificate must authorise
28
(1) A departure authorisation certificate in respect of a person must
29
authorise the departure of the person on or before the seventh day
30
after a day specified in the certificate.
31
Schedule 1 Departure prohibition orders
Part 1 Main amendments
10
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
(2) The day specified in the certificate must be a day that is after the
1
day on which the certificate is issued, but not more than 7 days
2
after that day.
3
102L Notification requirements for departure authorisation
4
certificates
5
(1) If the Secretary issues a departure authorisation certificate in
6
respect of a person, the Secretary must, as soon as practicable, give
7
a copy of the certificate to:
8
(a) the person; and
9
(b) each person to whom a copy of the departure prohibition
10
order in respect of the person was given under
11
subsection 102C(4) or (5).
12
(2) If:
13
(a) a person makes an application under section 102G for a
14
departure authorisation certificate; and
15
(b) the Secretary refuses to issue the certificate;
16
the Secretary must give notice of the refusal to the person.
17
(3) The notice must be in a form approved by the Secretary and must
18
be given as soon as practicable after the refusal.
19
102M Notification requirements for substituted days
20
(1) If, under section 102J, the Secretary substitutes a later day for a
21
person's return to Australia, the Secretary must give notice of that
22
decision to:
23
(a) the person; and
24
(b) each person to whom a copy of the departure prohibition
25
order in respect of the person was given under
26
subsection 102C(4) or (5).
27
(2) If:
28
(a) a person makes an application under paragraph 102J(2)(a) to
29
substitute a later day for the person's return to Australia; and
30
(b) the Secretary refuses the application;
31
the Secretary must give notice of the refusal to the person.
32
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
11
(3) A notice under this section must be in a form approved by the
1
Secretary and must be given as soon as practicable after the
2
decision concerned is made.
3
Subdivision E--Appeals and review in relation to departure
4
prohibition orders and departure authorisation
5
certificates
6
102N Appeals to courts against making of departure prohibition
7
orders
8
(1) A person aggrieved by the making of a departure prohibition order
9
may appeal to the Federal Court of Australia or the Federal Circuit
10
Court of Australia against the making of the order.
11
(2) This section has effect subject to Chapter III of the Constitution.
12
102P Jurisdiction of courts
13
The jurisdiction of a court under section 102N must be exercised
14
by a single Judge.
15
102Q Orders of court on appeal
16
A court hearing an appeal under section 102N against the making
17
of a departure prohibition order may, in its discretion:
18
(a) make an order setting aside the order; or
19
(b) dismiss the appeal.
20
102R Review of decisions
21
(1) Applications may be made to the Administrative Appeals Tribunal
22
for review of a decision of the Secretary under section 102E, 102H
23
or 102J.
24
(2) Despite any provision of Part 5, that Part does not apply in relation
25
to any decision of the Secretary under this Division.
26
Schedule 1 Departure prohibition orders
Part 1 Main amendments
12
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
Subdivision F--Enforcement
1
102S Powers of officers of Customs and members of the Australian
2
Federal Police
3
(1) This section applies if an officer (within the meaning of the
4
Customs Act 1901), or a member of the Australian Federal Police,
5
believes on reasonable grounds that:
6
(a) a person is about to depart from Australia for a foreign
7
country; and
8
(b) a departure prohibition order in respect of the person is in
9
force; and
10
(c) the person's departure is not authorised by a departure
11
authorisation certificate.
12
(2) The officer or member may:
13
(a) take such steps as are reasonably necessary to prevent the
14
person's departure, including, but not limited to, steps to
15
prevent the person going on board, or to remove the person
16
from, a vessel or aircraft in which the officer or member
17
believes on reasonable grounds the departure will take place;
18
and
19
(b) require the person to answer questions or produce documents
20
to the officer or member for the purposes of working out
21
whether:
22
(i) a departure prohibition order in respect of the person is
23
in force; and
24
(ii) if such an order in respect of the person is in force--
25
whether the person's departure is authorised by a
26
departure authorisation certificate.
27
(3) A person commits an offence if:
28
(a) the person is subject to a requirement under paragraph (2)(b);
29
and
30
(b) the person refuses or fails to comply with the requirement.
31
Penalty: 30 penalty units.
32
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
13
(4) Subsection (3) does not apply if the person answers the question or
1
produces the document to the extent that the person is capable of
2
answering the question or producing the document.
3
Note:
A defendant bears an evidential burden in relation to the matters
4
mentioned in subsection (4): see subsection 13.3(3) of the Criminal
5
Code.
6
102T Privilege against self-incrimination
7
(1) An individual is not excused from answering a question, or
8
producing a document, under paragraph 102S(2)(b) on the ground
9
that the answer to the question or the production of the document
10
might tend to incriminate the individual or expose the individual to
11
a penalty.
12
(2) However:
13
(a) the answer given or document produced; and
14
(b) answering the question or producing the document; and
15
(c) any information, document or thing obtained as a direct or
16
indirect consequence of the answering of the question or
17
producing the document;
18
are not admissible in evidence against the individual in any
19
criminal proceedings, other than proceedings under section 137.1
20
or 137.2 of the Criminal Code in relation to answering the question
21
or producing the document.
22
102U Production of authority to depart
23
(1) If:
24
(a) a departure prohibition order in respect of a person is in
25
force; and
26
(b) the person is about to depart from Australia for a foreign
27
country; and
28
(c) the person's departure is authorised by a departure
29
authorisation certificate;
30
an officer (within the meaning of the Customs Act 1901), or a
31
member of the Australian Federal Police, may request the person to
32
give a copy of the certificate to the officer or member for
33
inspection.
34
Schedule 1 Departure prohibition orders
Part 1 Main amendments
14
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
(2) A person commits an offence of strict liability if:
1
(a) an officer (within the meaning of the Customs Act 1901), or a
2
member of the Australian Federal Police, has made a request
3
of the person under subsection (1); and
4
(b) the person refuses or fails to comply with the request.
5
Penalty for contravention of this subsection: 5 penalty units.
6
Subdivision G--Interpretation
7
102V Interpretation--departure from Australia for foreign country
8
A reference in this Division to the departure of a person from
9
Australia for a foreign country is a reference to the departure of the
10
person from Australia for a foreign country, whether or not the
11
person intends to return to Australia.
12
102W Meaning of Australia
13
For the purposes of this Division, Australia, when used in a
14
geographical sense, includes the external Territories.
15
3 Part 5 (after the heading)
16
Insert:
17
Note:
This Part does not apply in relation to any decision of the Secretary under Division 5 of
18
Part 4 (about departure prohibition orders).
19
Paid Parental Leave Act 2010
20
4 Section 6 (at the end of the definition of Australia)
21
Add:
22
Note:
In Division 7A of Part 4-3 (about departure prohibition orders),
23
Australia has an extended meaning.
24
5 Section 6
25
Insert:
26
departure authorisation certificate means a certificate under
27
Subdivision D of Division 7A of Part 4-3.
28
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
15
departure prohibition order means an order under Subdivision A
1
of Division 7A of Part 4-3 (including such an order varied under
2
Subdivision C of that Division).
3
6 Section 164
4
After:
5
Division 7 allows the Secretary to waive debts in various
6
circumstances.
7
insert:
8
Division 7A deals with when a departure prohibition order,
9
prohibiting a person from departing from Australia for a foreign
10
country, can be made if the person has a debt due to the
11
Commonwealth under this Act.
12
7 After Division 7 of Part 4-3
13
Insert:
14
Division 7A--Departure prohibition orders
15
Subdivision A--Secretary may make departure prohibition
16
orders
17
200A Secretary may make departure prohibition orders
18
(1) The Secretary may make an order (a departure prohibition order)
19
prohibiting a person from departing from Australia for a foreign
20
country if:
21
(a) the person has one or more debts to the Commonwealth
22
under this Act; and
23
(b) there are not arrangements satisfactory to the Secretary for
24
the one or more debts to be wholly paid; and
25
(c) the Secretary believes on reasonable grounds that it is
26
desirable to make the order for the purpose of ensuring that
27
the person does not depart from Australia for a foreign
28
country without:
29
Schedule 1 Departure prohibition orders
Part 1 Main amendments
16
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
(i) having wholly paid the one or more debts; or
1
(ii) there being arrangements satisfactory to the Secretary
2
for the one or more debts to be wholly paid.
3
Matters to be taken into account in making order
4
(2) Before making an order under this section, the Secretary must have
5
regard to the following matters:
6
(a) the capacity of the person to pay the one or more debts;
7
(b) whether any action has been taken to recover any such debt,
8
and the outcome of the recovery action;
9
(c) the length of time for which any such debt has remained
10
unpaid after the day on which it became due and payable;
11
(d) such other matters as the Secretary considers appropriate.
12
Form of order
13
(3) A departure prohibition order must be in a form approved by the
14
Secretary.
15
Debts under section 168 disregarded
16
(4) A debt that a person has under section 168 is to be disregarded for
17
the purposes of this section.
18
Subdivision B--Departure from Australia of debtors
19
prohibited
20
200B Departure from Australia of debtors prohibited
21
A person must not depart from Australia for a foreign country if:
22
(a) a departure prohibition order in respect of the person is in
23
force, and the person knows that the order is in force, or is
24
reckless as to whether the order is in force; and
25
(b) the person's departure is not authorised by a departure
26
authorisation certificate, and the person knows that the
27
departure is not authorised by such a certificate, or is reckless
28
as to whether the departure is authorised by such a certificate.
29
Penalty: Imprisonment for 12 months.
30
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
17
Subdivision C--Other rules for departure prohibition orders
1
200C Notification requirements for departure prohibition orders
2
(1) This section applies if the Secretary makes a departure prohibition
3
order in respect of a person.
4
Notifying person of order
5
(2) The Secretary must notify the person that the order has been made.
6
(3) The notice must be in a form approved by the Secretary and must
7
be given as soon as practicable after making the order.
8
Notifying other persons of order
9
(4) Unless the Secretary is satisfied that the person is an Australian
10
citizen, the Secretary must give the Secretary of the Department
11
administered by the Immigration Minister a copy of the order, and
12
information likely to facilitate identification of the person, for the
13
purposes of administering the Migration Act 1958.
14
(5) The Secretary must also give a copy of the order, and information
15
likely to facilitate identification of the person for the purposes of
16
this Division, to such other persons as the Secretary considers
17
appropriate in the circumstances, being persons prescribed by the
18
PPL rules.
19
(6) The Secretary must give a copy of the order or information under
20
subsection (4) or (5) as soon as practicable after making the order.
21
200D Operation of departure prohibition order
22
(1) A departure prohibition order comes into force when it is made,
23
and continues in force until it is revoked, or until it is set aside by a
24
court.
25
Note:
Subdivision E deals with appeals to the Federal Court or the Federal
26
Circuit Court against the making of departure prohibition orders.
27
(2) However, a departure prohibition order in respect of a person is not
28
in force during any period when a deportation order in respect of
29
the person is in force under the Migration Act 1958.
30
Schedule 1 Departure prohibition orders
Part 1 Main amendments
18
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
200E Revocation and variation of departure prohibition orders
1
(1) The Secretary must revoke a departure prohibition order in respect
2
of a person if:
3
(a) the person no longer has any debts to the Commonwealth
4
under this Act; or
5
(b) there are arrangements satisfactory to the Secretary for the
6
one or more debts the person has to the Commonwealth
7
under this Act to be wholly paid; or
8
(c) the Secretary is satisfied that the one or more debts the
9
person has to the Commonwealth under this Act are
10
completely irrecoverable.
11
(2) The Secretary may revoke or vary a departure prohibition order in
12
respect of a person if the Secretary considers it desirable to do so.
13
(3) A revocation or variation, under this section, of a departure
14
prohibition order may be:
15
(a) on application by the person in a form approved by the
16
Secretary; or
17
(b) on the Secretary's own initiative.
18
Debts under section 168 disregarded
19
(4) A debt that a person has under section 168 is to be disregarded for
20
the purposes of this section.
21
200F Notification requirements for revocations and variations
22
(1) If the Secretary revokes or varies a departure prohibition order in
23
respect of a person, the Secretary must give notice of the
24
revocation or variation to:
25
(a) the person; and
26
(b) each person to whom a copy of the departure prohibition
27
order was given under subsection 200C(4) or (5).
28
(2) If:
29
(a) a person makes an application under paragraph 200E(3)(a)
30
for the revocation or variation of a departure prohibition
31
order; and
32
(b) the Secretary refuses to revoke or vary the order;
33
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
19
the Secretary must give notice of the refusal to the person.
1
(3) A notice under this section must be in a form approved by the
2
Secretary and must be given as soon as practicable after the
3
decision concerned is made.
4
Subdivision D--Departure authorisation certificates
5
200G Application for departure authorisation certificate
6
(1) A person in respect of whom a departure prohibition order is in
7
force may apply for a certificate (a departure authorisation
8
certificate) authorising the person to depart from Australia for a
9
foreign country.
10
(2) The application must be in a form approved by the Secretary.
11
200H When Secretary must issue departure authorisation certificate
12
(1) This section applies if a person makes an application under
13
section 200G for a departure authorisation certificate.
14
(2) The Secretary must issue the departure authorisation certificate if
15
the Secretary is satisfied:
16
(a) that, if the certificate is issued:
17
(i) it is likely that the person will depart from Australia and
18
return to Australia within a period that the Secretary
19
considers appropriate; and
20
(ii) it is likely that, within a period that the Secretary
21
considers appropriate, the Secretary will be required by
22
subsection 200E(1) to revoke the departure prohibition
23
order in respect of the person; and
24
(b) that it is not necessary for the person to give security under
25
section 200J for the person's return to Australia.
26
(3) If the Secretary is not satisfied as mentioned in subsection (2), the
27
Secretary must issue the departure authorisation certificate if:
28
(a) the person has given security under section 200J for the
29
person's return to Australia; or
30
(b) if the person is unable to give such security, the Secretary is
31
satisfied:
32
Schedule 1 Departure prohibition orders
Part 1 Main amendments
20
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
(i) that the certificate should be issued on humanitarian
1
grounds; or
2
(ii) that refusing to issue the certificate will be detrimental
3
to Australia's interests.
4
200J Security for person's return to Australia
5
(1) A person may give such security as the Secretary considers
6
appropriate by bond, deposit or any other means, for the person's
7
return to Australia by such day as is agreed by the person and the
8
Secretary and is specified in the departure authorisation certificate.
9
(2) The Secretary may substitute a later day for the day mentioned in
10
subsection (1):
11
(a) on application by the person in a form approved by the
12
Secretary; or
13
(b) on the Secretary's own initiative.
14
(3) The Secretary may refuse an application by a person to substitute a
15
later day if:
16
(a) the person refuses to increase the value of the security
17
already given to a level that the Secretary considers
18
appropriate; or
19
(b) the person refuses to give such further security as the
20
Secretary considers appropriate; or
21
(c) the Secretary considers that it would not be appropriate to
22
substitute the later day.
23
200K What departure authorisation certificate must authorise
24
(1) A departure authorisation certificate in respect of a person must
25
authorise the departure of the person on or before the seventh day
26
after a day specified in the certificate.
27
(2) The day specified in the certificate must be a day that is after the
28
day on which the certificate is issued, but not more than 7 days
29
after that day.
30
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
21
200L Notification requirements for departure authorisation
1
certificates
2
(1) If the Secretary issues a departure authorisation certificate in
3
respect of a person, the Secretary must, as soon as practicable, give
4
a copy of the certificate to:
5
(a) the person; and
6
(b) each person to whom a copy of the departure prohibition
7
order in respect of the person was given under
8
subsection 200C(4) or (5).
9
(2) If:
10
(a) a person makes an application under section 200G for a
11
departure authorisation certificate; and
12
(b) the Secretary refuses to issue the certificate;
13
the Secretary must give notice of the refusal to the person.
14
(3) The notice must be in a form approved by the Secretary and must
15
be given as soon as practicable after the refusal.
16
200M Notification requirements for substituted days
17
(1) If, under section 200J, the Secretary substitutes a later day for a
18
person's return to Australia, the Secretary must give notice of that
19
decision to:
20
(a) the person; and
21
(b) each person to whom a copy of the departure prohibition
22
order in respect of the person was given under
23
subsection 200C(4) or (5).
24
(2) If:
25
(a) a person makes an application under paragraph 200J(2)(a) to
26
substitute a later day for the person's return to Australia; and
27
(b) the Secretary refuses the application;
28
the Secretary must give notice of the refusal to the person.
29
(3) A notice under this section must be in a form approved by the
30
Secretary and must be given as soon as practicable after the
31
decision concerned is made.
32
Schedule 1 Departure prohibition orders
Part 1 Main amendments
22
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
Subdivision E--Appeals and review in relation to departure
1
prohibition orders and departure authorisation
2
certificates
3
200N Appeals to courts against making of departure prohibition
4
orders
5
(1) A person aggrieved by the making of a departure prohibition order
6
may appeal to the Federal Court or the Federal Circuit Court
7
against the making of the order.
8
(2) This section has effect subject to Chapter III of the Constitution.
9
200P Jurisdiction of courts
10
The jurisdiction of a court under section 200N must be exercised
11
by a single Judge.
12
200Q Orders of court on appeal
13
A court hearing an appeal under section 200N against the making
14
of a departure prohibition order may, in its discretion:
15
(a) make an order setting aside the order; or
16
(b) dismiss the appeal.
17
200R Review of decisions
18
(1) Applications may be made to the Administrative Appeals Tribunal
19
for review of a decision of the Secretary under section 200E, 200H
20
or 200J.
21
(2) Despite any provision of Chapter 5, that Chapter does not apply in
22
relation to any decision of the Secretary under this Division.
23
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
23
Subdivision F--Enforcement
1
200S Powers of officers of Customs and members of the Australian
2
Federal Police
3
(1) This section applies if an officer (within the meaning of the
4
Customs Act 1901), or a member of the Australian Federal Police,
5
believes on reasonable grounds that:
6
(a) a person is about to depart from Australia for a foreign
7
country; and
8
(b) a departure prohibition order in respect of the person is in
9
force; and
10
(c) the person's departure is not authorised by a departure
11
authorisation certificate.
12
(2) The officer or member may:
13
(a) take such steps as are reasonably necessary to prevent the
14
person's departure, including, but not limited to, steps to
15
prevent the person going on board, or to remove the person
16
from, a vessel or aircraft in which the officer or member
17
believes on reasonable grounds the departure will take place;
18
and
19
(b) require the person to answer questions or produce documents
20
to the officer or member for the purposes of working out
21
whether:
22
(i) a departure prohibition order in respect of the person is
23
in force; and
24
(ii) if such an order in respect of the person is in force--
25
whether the person's departure is authorised by a
26
departure authorisation certificate.
27
(3) A person commits an offence if:
28
(a) the person is subject to a requirement under paragraph (2)(b);
29
and
30
(b) the person refuses or fails to comply with the requirement.
31
Penalty: 30 penalty units.
32
Schedule 1 Departure prohibition orders
Part 1 Main amendments
24
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
(4) Subsection (3) does not apply if the person answers the question or
1
produces the document to the extent that the person is capable of
2
answering the question or producing the document.
3
Note:
A defendant bears an evidential burden in relation to the matters
4
mentioned in subsection (4): see subsection 13.3(3) of the Criminal
5
Code.
6
200T Privilege against self-incrimination
7
(1) An individual is not excused from answering a question, or
8
producing a document, under paragraph 200S(2)(b) on the ground
9
that the answer to the question or the production of the document
10
might tend to incriminate the individual or expose the individual to
11
a penalty.
12
(2) However:
13
(a) the answer given or document produced; and
14
(b) answering the question or producing the document; and
15
(c) any information, document or thing obtained as a direct or
16
indirect consequence of the answering of the question or
17
producing the document;
18
are not admissible in evidence against the individual in any
19
criminal proceedings, other than proceedings under section 137.1
20
or 137.2 of the Criminal Code in relation to answering the question
21
or producing the document.
22
200U Production of authority to depart
23
(1) If:
24
(a) a departure prohibition order in respect of a person is in
25
force; and
26
(b) the person is about to depart from Australia for a foreign
27
country; and
28
(c) the person's departure is authorised by a departure
29
authorisation certificate;
30
an officer (within the meaning of the Customs Act 1901), or a
31
member of the Australian Federal Police, may request the person to
32
give a copy of the certificate to the officer or member for
33
inspection.
34
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
25
(2) A person commits an offence of strict liability if:
1
(a) an officer (within the meaning of the Customs Act 1901), or a
2
member of the Australian Federal Police, has made a request
3
of the person under subsection (1); and
4
(b) the person refuses or fails to comply with the request.
5
Penalty for contravention of this subsection: 5 penalty units.
6
Subdivision G--Interpretation
7
200V Interpretation--departure from Australia for foreign country
8
A reference in this Division to the departure of a person from
9
Australia for a foreign country is a reference to the departure of the
10
person from Australia for a foreign country, whether or not the
11
person intends to return to Australia.
12
200W Meaning of Australia
13
For the purposes of this Division, Australia, when used in a
14
geographical sense, includes the external Territories.
15
8 Chapter 5 (after the heading)
16
Insert:
17
Note:
This Chapter does not apply in relation to any decision of the Secretary under
18
Division 7A of Part 4-3 (about departure prohibition orders).
19
Social Security Act 1991
20
9 Subsection 23(1) (at the end of the definition of Australia,
21
before the note)
22
Add:
23
Note 1:
In Part 5.5 of Chapter 5 (about departure prohibition orders),
24
Australia has an extended meaning.
25
10 Subsection 23(1) (note at the end of the definition of
26
Australia)
27
Omit "Note", substitute "Note 2".
28
Schedule 1 Departure prohibition orders
Part 1 Main amendments
26
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
11 Subsection 23(1)
1
Insert:
2
departure authorisation certificate means a certificate under
3
Division 4 of Part 5.5.
4
departure prohibition order means an order under Division 1 of
5
Part 5.5 (including such an order varied under Division 3 of that
6
Part).
7
12 At the end of Chapter 5
8
Add:
9
Part 5.5--Departure prohibition orders
10
Division 1--Secretary may make departure prohibition
11
orders
12
1240 Secretary may make departure prohibition orders
13
(1) The Secretary may make an order (a departure prohibition order)
14
prohibiting a person from departing from Australia for a foreign
15
country if:
16
(a) the person has one or more debts to the Commonwealth
17
under the social security law; and
18
(b) there are not arrangements satisfactory to the Secretary for
19
the one or more debts to be wholly paid; and
20
(c) the Secretary believes on reasonable grounds that it is
21
desirable to make the order for the purpose of ensuring that
22
the person does not depart from Australia for a foreign
23
country without:
24
(i) having wholly paid the one or more debts; or
25
(ii) there being arrangements satisfactory to the Secretary
26
for the one or more debts to be wholly paid.
27
Matters to be taken into account in making order
28
(2) Before making an order under this section, the Secretary must have
29
regard to the following matters:
30
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
27
(a) the capacity of the person to pay the one or more debts;
1
(b) whether any action has been taken to recover any such debt,
2
and the outcome of the recovery action;
3
(c) the length of time for which any such debt has remained
4
unpaid after the day on which it became due and payable;
5
(d) such other matters as the Secretary considers appropriate.
6
Form of order
7
(3) A departure prohibition order must be in a form approved by the
8
Secretary.
9
Division 2--Departure from Australia of debtors
10
prohibited
11
1241 Departure from Australia of debtors prohibited
12
A person must not depart from Australia for a foreign country if:
13
(a) a departure prohibition order in respect of the person is in
14
force, and the person knows that the order is in force, or is
15
reckless as to whether the order is in force; and
16
(b) the person's departure is not authorised by a departure
17
authorisation certificate, and the person knows that the
18
departure is not authorised by such a certificate, or is reckless
19
as to whether the departure is authorised by such a certificate.
20
Penalty: Imprisonment for 12 months.
21
Division 3--Other rules for departure prohibition orders
22
1242 Notification requirements for departure prohibition orders
23
(1) This section applies if the Secretary makes a departure prohibition
24
order in respect of a person.
25
Notifying person of order
26
(2) The Secretary must notify the person that the order has been made.
27
Schedule 1 Departure prohibition orders
Part 1 Main amendments
28
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
(3) The notice must be in a form approved by the Secretary and must
1
be given as soon as practicable after making the order.
2
Notifying other persons of order
3
(4) Unless the Secretary is satisfied that the person is an Australian
4
citizen, the Secretary must give the Secretary of the Department
5
administered by the Minister administering the Migration Act 1958
6
a copy of the order, and information likely to facilitate
7
identification of the person, for the purposes of administering that
8
Act.
9
(5) The Secretary must also give a copy of the order, and information
10
likely to facilitate identification of the person for the purposes of
11
this Part, to such other persons as the Secretary considers
12
appropriate in the circumstances, being persons declared in an
13
instrument under subsection (6).
14
(6) The Secretary may, by legislative instrument, declare persons for
15
the purposes of subsection (5).
16
(7) The Secretary must give a copy of the order or information under
17
subsection (4) or (5) as soon as practicable after making the order.
18
1243 Operation of departure prohibition order
19
(1) A departure prohibition order comes into force when it is made,
20
and continues in force until it is revoked, or until it is set aside by a
21
court.
22
Note:
Division 5 deals with appeals to the Federal Court of Australia or the
23
Federal Circuit Court of Australia against the making of departure
24
prohibition orders.
25
(2) However, a departure prohibition order in respect of a person is not
26
in force during any period when a deportation order in respect of
27
the person is in force under the Migration Act 1958.
28
1244 Revocation and variation of departure prohibition orders
29
(1) The Secretary must revoke a departure prohibition order in respect
30
of a person if:
31
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
29
(a) the person no longer has any debts to the Commonwealth
1
under the social security law; or
2
(b) there are arrangements satisfactory to the Secretary for the
3
one or more debts the person has to the Commonwealth
4
under the social security law to be wholly paid; or
5
(c) the Secretary is satisfied that the one or more debts the
6
person has to the Commonwealth under the social security
7
law are completely irrecoverable.
8
(2) The Secretary may revoke or vary a departure prohibition order in
9
respect of a person if the Secretary considers it desirable to do so.
10
(3) A revocation or variation, under this section, of a departure
11
prohibition order may be:
12
(a) on application by the person in a form approved by the
13
Secretary; or
14
(b) on the Secretary's own initiative.
15
1245 Notification requirements for revocations and variations
16
(1) If the Secretary revokes or varies a departure prohibition order in
17
respect of a person, the Secretary must give notice of the
18
revocation or variation to:
19
(a) the person; and
20
(b) each person to whom a copy of the departure prohibition
21
order was given under subsection 1242(4) or (5).
22
(2) If:
23
(a) a person makes an application under paragraph 1244(3)(a)
24
for the revocation or variation of a departure prohibition
25
order; and
26
(b) the Secretary refuses to revoke or vary the order;
27
the Secretary must give notice of the refusal to the person.
28
(3) A notice under this section must be in a form approved by the
29
Secretary and must be given as soon as practicable after the
30
decision concerned is made.
31
Schedule 1 Departure prohibition orders
Part 1 Main amendments
30
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
Division 4--Departure authorisation certificates
1
1246 Application for departure authorisation certificate
2
(1) A person in respect of whom a departure prohibition order is in
3
force may apply for a certificate (a departure authorisation
4
certificate) authorising the person to depart from Australia for a
5
foreign country.
6
(2) The application must be in a form approved by the Secretary.
7
1247 When Secretary must issue departure authorisation certificate
8
(1) This section applies if a person makes an application under
9
section 1246 for a departure authorisation certificate.
10
(2) The Secretary must issue the departure authorisation certificate if
11
the Secretary is satisfied:
12
(a) that, if the certificate is issued:
13
(i) it is likely that the person will depart from Australia and
14
return to Australia within a period that the Secretary
15
considers appropriate; and
16
(ii) it is likely that, within a period that the Secretary
17
considers appropriate, the Secretary will be required by
18
subsection 1244(1) to revoke the departure prohibition
19
order in respect of the person; and
20
(b) that it is not necessary for the person to give security under
21
section 1248 for the person's return to Australia.
22
(3) If the Secretary is not satisfied as mentioned in subsection (2), the
23
Secretary must issue the departure authorisation certificate if:
24
(a) the person has given security under section 1248 for the
25
person's return to Australia; or
26
(b) if the person is unable to give such security, the Secretary is
27
satisfied:
28
(i) that the certificate should be issued on humanitarian
29
grounds; or
30
(ii) that refusing to issue the certificate will be detrimental
31
to Australia's interests.
32
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
31
1248 Security for person's return to Australia
1
(1) A person may give such security as the Secretary considers
2
appropriate by bond, deposit or any other means, for the person's
3
return to Australia by such day as is agreed by the person and the
4
Secretary and is specified in the departure authorisation certificate.
5
(2) The Secretary may substitute a later day for the day mentioned in
6
subsection (1):
7
(a) on application by the person in a form approved by the
8
Secretary; or
9
(b) on the Secretary's own initiative.
10
(3) The Secretary may refuse an application by a person to substitute a
11
later day if:
12
(a) the person refuses to increase the value of the security
13
already given to a level that the Secretary considers
14
appropriate; or
15
(b) the person refuses to give such further security as the
16
Secretary considers appropriate; or
17
(c) the Secretary considers that it would not be appropriate to
18
substitute the later day.
19
1249 What departure authorisation certificate must authorise
20
(1) A departure authorisation certificate in respect of a person must
21
authorise the departure of the person on or before the seventh day
22
after a day specified in the certificate.
23
(2) The day specified in the certificate must be a day that is after the
24
day on which the certificate is issued, but not more than 7 days
25
after that day.
26
1250 Notification requirements for departure authorisation
27
certificates
28
(1) If the Secretary issues a departure authorisation certificate in
29
respect of a person, the Secretary must, as soon as practicable, give
30
a copy of the certificate to:
31
(a) the person; and
32
Schedule 1 Departure prohibition orders
Part 1 Main amendments
32
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
(b) each person to whom a copy of the departure prohibition
1
order in respect of the person was given under
2
subsection 1242(4) or (5).
3
(2) If:
4
(a) a person makes an application under section 1246 for a
5
departure authorisation certificate; and
6
(b) the Secretary refuses to issue the certificate;
7
the Secretary must give notice of the refusal to the person.
8
(3) The notice must be in a form approved by the Secretary and must
9
be given as soon as practicable after the refusal.
10
1251 Notification requirements for substituted days
11
(1) If, under section 1248, the Secretary substitutes a later day for a
12
person's return to Australia, the Secretary must give notice of that
13
decision to:
14
(a) the person; and
15
(b) each person to whom a copy of the departure prohibition
16
order in respect of the person was given under
17
subsection 1242(4) or (5).
18
(2) If:
19
(a) a person makes an application under paragraph 1248(2)(a) to
20
substitute a later day for the person's return to Australia; and
21
(b) the Secretary refuses the application;
22
the Secretary must give notice of the refusal to the person.
23
(3) A notice under this section must be in a form approved by the
24
Secretary and must be given as soon as practicable after the
25
decision concerned is made.
26
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
33
Division 5--Appeals and review in relation to departure
1
prohibition orders and departure authorisation
2
certificates
3
1252 Appeals to courts against making of departure prohibition
4
orders
5
(1) A person aggrieved by the making of a departure prohibition order
6
may appeal to the Federal Court of Australia or the Federal Circuit
7
Court of Australia against the making of the order.
8
(2) This section has effect subject to Chapter III of the Constitution.
9
1253 Jurisdiction of courts
10
The jurisdiction of a court under section 1252 must be exercised by
11
a single Judge.
12
1254 Orders of court on appeal
13
A court hearing an appeal under section 1252 against the making
14
of a departure prohibition order may, in its discretion:
15
(a) make an order setting aside the order; or
16
(b) dismiss the appeal.
17
1255 Review of decisions
18
(1) Applications may be made to the Administrative Appeals Tribunal
19
for review of a decision of the Secretary under section 1244, 1247
20
or 1248.
21
(2) Despite any provision of Parts 4 and 4A of the Administration Act,
22
those Parts do not apply in relation to any decision of the Secretary
23
under this Part.
24
Schedule 1 Departure prohibition orders
Part 1 Main amendments
34
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
Division 6--Enforcement
1
1256 Powers of officers of Customs and members of the Australian
2
Federal Police
3
(1) This section applies if an officer (within the meaning of the
4
Customs Act 1901), or a member of the Australian Federal Police,
5
believes on reasonable grounds that:
6
(a) a person is about to depart from Australia for a foreign
7
country; and
8
(b) a departure prohibition order in respect of the person is in
9
force; and
10
(c) the person's departure is not authorised by a departure
11
authorisation certificate.
12
(2) The officer or member may:
13
(a) take such steps as are reasonably necessary to prevent the
14
person's departure, including, but not limited to, steps to
15
prevent the person going on board, or to remove the person
16
from, a vessel or aircraft in which the officer or member
17
believes on reasonable grounds the departure will take place;
18
and
19
(b) require the person to answer questions or produce documents
20
to the officer or member for the purposes of working out
21
whether:
22
(i) a departure prohibition order in respect of the person is
23
in force; and
24
(ii) if such an order in respect of the person is in force--
25
whether the person's departure is authorised by a
26
departure authorisation certificate.
27
(3) A person commits an offence if:
28
(a) the person is subject to a requirement under paragraph (2)(b);
29
and
30
(b) the person refuses or fails to comply with the requirement.
31
Penalty: 30 penalty units.
32
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
35
(4) Subsection (3) does not apply if the person answers the question or
1
produces the document to the extent that the person is capable of
2
answering the question or producing the document.
3
Note:
A defendant bears an evidential burden in relation to the matters
4
mentioned in subsection (4): see subsection 13.3(3) of the Criminal
5
Code.
6
1257 Privilege against self-incrimination
7
(1) An individual is not excused from answering a question, or
8
producing a document, under paragraph 1256(2)(b) on the ground
9
that the answer to the question or the production of the document
10
might tend to incriminate the individual or expose the individual to
11
a penalty.
12
(2) However:
13
(a) the answer given or document produced; and
14
(b) answering the question or producing the document; and
15
(c) any information, document or thing obtained as a direct or
16
indirect consequence of the answering of the question or
17
producing the document;
18
are not admissible in evidence against the individual in any
19
criminal proceedings, other than proceedings under section 137.1
20
or 137.2 of the Criminal Code in relation to answering the question
21
or producing the document.
22
1258 Production of authority to depart
23
(1) If:
24
(a) a departure prohibition order in respect of a person is in
25
force; and
26
(b) the person is about to depart from Australia for a foreign
27
country; and
28
(c) the person's departure is authorised by a departure
29
authorisation certificate;
30
an officer (within the meaning of the Customs Act 1901), or a
31
member of the Australian Federal Police, may request the person to
32
give a copy of the certificate to the officer or member for
33
inspection.
34
Schedule 1 Departure prohibition orders
Part 1 Main amendments
36
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
(2) A person commits an offence of strict liability if:
1
(a) an officer (within the meaning of the Customs Act 1901), or a
2
member of the Australian Federal Police, has made a request
3
of the person under subsection (1); and
4
(b) the person refuses or fails to comply with the request.
5
Penalty for contravention of this subsection: 5 penalty units.
6
Division 7--Interpretation
7
1259 Interpretation--departure from Australia for foreign country
8
A reference in this Part to the departure of a person from Australia
9
for a foreign country is a reference to the departure of the person
10
from Australia for a foreign country, whether or not the person
11
intends to return to Australia.
12
1260 Meaning of Australia
13
(1) For the purposes of this Part, Australia, when used in a
14
geographical sense, includes the external Territories.
15
(2) For the purposes of this section:
16
(a) the definition of external Territory in subsection 23(1) does
17
not apply; and
18
(b) external Territory has the meaning given by section 2B of
19
the Acts Interpretation Act 1901.
20
Student Assistance Act 1973
21
13 Subsection 3(1)
22
Insert:
23
departure authorisation certificate means a certificate under
24
Subdivision D of Division 4 of Part 6.
25
departure prohibition order means an order under Subdivision A
26
of Division 4 of Part 6 (including such an order varied under
27
Subdivision C of that Division).
28
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
37
14 At the end of Part 6
1
Add:
2
Division 4--Departure prohibition orders
3
Subdivision A--Secretary may make departure prohibition
4
orders
5
43G Secretary may make departure prohibition orders
6
(1) The Secretary may make an order (a departure prohibition order)
7
prohibiting a person from departing from Australia for a foreign
8
country if:
9
(a) the person has one or more debts to the Commonwealth
10
under this Part; and
11
(b) there are not arrangements satisfactory to the Secretary for
12
the one or more debts to be wholly paid; and
13
(c) the Secretary believes on reasonable grounds that it is
14
desirable to make the order for the purpose of ensuring that
15
the person does not depart from Australia for a foreign
16
country without:
17
(i) having wholly paid the one or more debts; or
18
(ii) there being arrangements satisfactory to the Secretary
19
for the one or more debts to be wholly paid.
20
Matters to be taken into account in making order
21
(2) Before making an order under this section, the Secretary must have
22
regard to the following matters:
23
(a) the capacity of the person to pay the one or more debts;
24
(b) whether any action has been taken to recover any such debt,
25
and the outcome of the recovery action;
26
(c) the length of time for which any such debt has remained
27
unpaid after the day on which it became due and payable;
28
(d) such other matters as the Secretary considers appropriate.
29
Schedule 1 Departure prohibition orders
Part 1 Main amendments
38
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
Form of order
1
(3) A departure prohibition order must be in a form approved by the
2
Secretary.
3
Subdivision B--Departure from Australia of debtors
4
prohibited
5
43H Departure from Australia of debtors prohibited
6
A person must not depart from Australia for a foreign country if:
7
(a) a departure prohibition order in respect of the person is in
8
force, and the person knows that the order is in force, or is
9
reckless as to whether the order is in force; and
10
(b) the person's departure is not authorised by a departure
11
authorisation certificate, and the person knows that the
12
departure is not authorised by such a certificate, or is reckless
13
as to whether the departure is authorised by such a certificate.
14
Penalty: Imprisonment for 12 months.
15
Subdivision C--Other rules for departure prohibition orders
16
43J Notification requirements for departure prohibition orders
17
(1) This section applies if the Secretary makes a departure prohibition
18
order in respect of a person.
19
Notifying person of order
20
(2) The Secretary must notify the person that the order has been made.
21
(3) The notice must be in a form approved by the Secretary and must
22
be given as soon as practicable after making the order.
23
Notifying other persons of order
24
(4) Unless the Secretary is satisfied that the person is an Australian
25
citizen, the Secretary must give the Secretary of the Department
26
administered by the Minister administering the Migration Act 1958
27
a copy of the order, and information likely to facilitate
28
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
39
identification of the person, for the purposes of administering that
1
Act.
2
(5) The Secretary must also give a copy of the order, and information
3
likely to facilitate identification of the person for the purposes of
4
this Division, to such other persons as the Secretary considers
5
appropriate in the circumstances, being persons declared in an
6
instrument under subsection (6).
7
(6) The Secretary may, by legislative instrument, declare persons for
8
the purposes of subsection (5).
9
(7) The Secretary must give a copy of the order or information under
10
subsection (4) or (5) as soon as practicable after making the order.
11
43K Operation of departure prohibition order
12
(1) A departure prohibition order comes into force when it is made,
13
and continues in force until it is revoked, or until it is set aside by a
14
court.
15
Note:
Subdivision E deals with appeals to the Federal Court of Australia or
16
the Federal Circuit Court of Australia against the making of departure
17
prohibition orders.
18
(2) However, a departure prohibition order in respect of a person is not
19
in force during any period when a deportation order in respect of
20
the person is in force under the Migration Act 1958.
21
43L Revocation and variation of departure prohibition orders
22
(1) The Secretary must revoke a departure prohibition order in respect
23
of a person if:
24
(a) the person no longer has any debts to the Commonwealth
25
under this Part; or
26
(b) there are arrangements satisfactory to the Secretary for the
27
one or more debts the person has to the Commonwealth
28
under this Part to be wholly paid; or
29
(c) the Secretary is satisfied that the one or more debts the
30
person has to the Commonwealth under this Part are
31
completely irrecoverable.
32
Schedule 1 Departure prohibition orders
Part 1 Main amendments
40
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
(2) The Secretary may revoke or vary a departure prohibition order in
1
respect of a person if the Secretary considers it desirable to do so.
2
(3) A revocation or variation, under this section, of a departure
3
prohibition order may be:
4
(a) on application by the person in a form approved by the
5
Secretary; or
6
(b) on the Secretary's own initiative.
7
43M Notification requirements for revocations and variations
8
(1) If the Secretary revokes or varies a departure prohibition order in
9
respect of a person, the Secretary must give notice of the
10
revocation or variation to:
11
(a) the person; and
12
(b) each person to whom a copy of the departure prohibition
13
order was given under subsection 43J(4) or (5).
14
(2) If:
15
(a) a person makes an application under paragraph 43L(3)(a) for
16
the revocation or variation of a departure prohibition order;
17
and
18
(b) the Secretary refuses to revoke or vary the order;
19
the Secretary must give notice of the refusal to the person.
20
(3) A notice under this section must be in a form approved by the
21
Secretary and must be given as soon as practicable after the
22
decision concerned is made.
23
Subdivision D--Departure authorisation certificates
24
43N Application for departure authorisation certificate
25
(1) A person in respect of whom a departure prohibition order is in
26
force may apply for a certificate (a departure authorisation
27
certificate) authorising the person to depart from Australia for a
28
foreign country.
29
(2) The application must be in a form approved by the Secretary.
30
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
41
43P When Secretary must issue departure authorisation certificate
1
(1) This section applies if a person makes an application under
2
section 43N for a departure authorisation certificate.
3
(2) The Secretary must issue the departure authorisation certificate if
4
the Secretary is satisfied:
5
(a) that, if the certificate is issued:
6
(i) it is likely that the person will depart from Australia and
7
return to Australia within a period that the Secretary
8
considers appropriate; and
9
(ii) it is likely that, within a period that the Secretary
10
considers appropriate, the Secretary will be required by
11
subsection 43L(1) to revoke the departure prohibition
12
order in respect of the person; and
13
(b) that it is not necessary for the person to give security under
14
section 43Q for the person's return to Australia.
15
(3) If the Secretary is not satisfied as mentioned in subsection (2), the
16
Secretary must issue the departure authorisation certificate if:
17
(a) the person has given security under section 43Q for the
18
person's return to Australia; or
19
(b) if the person is unable to give such security, the Secretary is
20
satisfied:
21
(i) that the certificate should be issued on humanitarian
22
grounds; or
23
(ii) that refusing to issue the certificate will be detrimental
24
to Australia's interests.
25
43Q Security for person's return to Australia
26
(1) A person may give such security as the Secretary considers
27
appropriate by bond, deposit or any other means, for the person's
28
return to Australia by such day as is agreed by the person and the
29
Secretary and is specified in the departure authorisation certificate.
30
(2) The Secretary may substitute a later day for the day mentioned in
31
subsection (1):
32
(a) on application by the person in a form approved by the
33
Secretary; or
34
Schedule 1 Departure prohibition orders
Part 1 Main amendments
42
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
(b) on the Secretary's own initiative.
1
(3) The Secretary may refuse an application by a person to substitute a
2
later day if:
3
(a) the person refuses to increase the value of the security
4
already given to a level that the Secretary considers
5
appropriate; or
6
(b) the person refuses to give such further security as the
7
Secretary considers appropriate; or
8
(c) the Secretary considers that it would not be appropriate to
9
substitute the later day.
10
43R What departure authorisation certificate must authorise
11
(1) A departure authorisation certificate in respect of a person must
12
authorise the departure of the person on or before the seventh day
13
after a day specified in the certificate.
14
(2) The day specified in the certificate must be a day that is after the
15
day on which the certificate is issued, but not more than 7 days
16
after that day.
17
43S Notification requirements for departure authorisation
18
certificates
19
(1) If the Secretary issues a departure authorisation certificate in
20
respect of a person, the Secretary must, as soon as practicable, give
21
a copy of the certificate to:
22
(a) the person; and
23
(b) each person to whom a copy of the departure prohibition
24
order in respect of the person was given under
25
subsection 43J(4) or (5).
26
(2) If:
27
(a) a person makes an application under section 43N for a
28
departure authorisation certificate; and
29
(b) the Secretary refuses to issue the certificate;
30
the Secretary must give notice of the refusal to the person.
31
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
43
(3) The notice must be in a form approved by the Secretary and must
1
be given as soon as practicable after the refusal.
2
43T Notification requirements for substituted days
3
(1) If, under section 43Q, the Secretary substitutes a later day for a
4
person's return to Australia, the Secretary must give notice of that
5
decision to:
6
(a) the person; and
7
(b) each person to whom a copy of the departure prohibition
8
order in respect of the person was given under
9
subsection 43J(4) or (5).
10
(2) If:
11
(a) a person makes an application under paragraph 43Q(2)(a) to
12
substitute a later day for the person's return to Australia; and
13
(b) the Secretary refuses the application;
14
the Secretary must give notice of the refusal to the person.
15
(3) A notice under this section must be in a form approved by the
16
Secretary and must be given as soon as practicable after the
17
decision concerned is made.
18
Subdivision E--Appeals and review in relation to departure
19
prohibition orders and departure authorisation
20
certificates
21
43U Appeals to courts against making of departure prohibition
22
orders
23
(1) A person aggrieved by the making of a departure prohibition order
24
may appeal to the Federal Court of Australia or the Federal Circuit
25
Court of Australia against the making of the order.
26
(2) This section has effect subject to Chapter III of the Constitution.
27
43V Jurisdiction of courts
28
The jurisdiction of a court under section 43U must be exercised by
29
a single Judge.
30
Schedule 1 Departure prohibition orders
Part 1 Main amendments
44
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
43W Orders of court on appeal
1
A court hearing an appeal under section 43U against the making of
2
a departure prohibition order may, in its discretion:
3
(a) make an order setting aside the order; or
4
(b) dismiss the appeal.
5
43X Review of decisions
6
(1) Applications may be made to the Administrative Appeals Tribunal
7
for review of a decision of the Secretary under section 43L, 43P or
8
43Q.
9
(2) Despite any provision of Part 9, that Part does not apply in relation
10
to any decision of the Secretary under this Division.
11
(3) In this section:
12
decision has the same meaning as in the Administrative Appeals
13
Tribunal Act 1975.
14
Subdivision F--Enforcement
15
43Y Powers of officers of Customs and members of the Australian
16
Federal Police
17
(1) This section applies if an officer (within the meaning of the
18
Customs Act 1901), or a member of the Australian Federal Police,
19
believes on reasonable grounds that:
20
(a) a person is about to depart from Australia for a foreign
21
country; and
22
(b) a departure prohibition order in respect of the person is in
23
force; and
24
(c) the person's departure is not authorised by a departure
25
authorisation certificate.
26
(2) The officer or member may:
27
(a) take such steps as are reasonably necessary to prevent the
28
person's departure, including, but not limited to, steps to
29
prevent the person going on board, or to remove the person
30
from, a vessel or aircraft in which the officer or member
31
Departure prohibition orders Schedule 1
Main amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
45
believes on reasonable grounds the departure will take place;
1
and
2
(b) require the person to answer questions or produce documents
3
to the officer or member for the purposes of working out
4
whether:
5
(i) a departure prohibition order in respect of the person is
6
in force; and
7
(ii) if such an order in respect of the person is in force--
8
whether the person's departure is authorised by a
9
departure authorisation certificate.
10
(3) A person commits an offence if:
11
(a) the person is subject to a requirement under paragraph (2)(b);
12
and
13
(b) the person refuses or fails to comply with the requirement.
14
Penalty: 30 penalty units.
15
(4) Subsection (3) does not apply if the person answers the question or
16
produces the document to the extent that the person is capable of
17
answering the question or producing the document.
18
Note:
A defendant bears an evidential burden in relation to the matters
19
mentioned in subsection (4): see subsection 13.3(3) of the Criminal
20
Code.
21
43Z Privilege against self-incrimination
22
(1) An individual is not excused from answering a question, or
23
producing a document, under paragraph 43Y(2)(b) on the ground
24
that the answer to the question or the production of the document
25
might tend to incriminate the individual or expose the individual to
26
a penalty.
27
(2) However:
28
(a) the answer given or document produced; and
29
(b) answering the question or producing the document; and
30
(c) any information, document or thing obtained as a direct or
31
indirect consequence of the answering of the question or
32
producing the document;
33
Schedule 1 Departure prohibition orders
Part 1 Main amendments
46
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
are not admissible in evidence against the individual in any
1
criminal proceedings, other than proceedings under section 137.1
2
or 137.2 of the Criminal Code in relation to answering the question
3
or producing the document.
4
43ZA Production of authority to depart
5
(1) If:
6
(a) a departure prohibition order in respect of a person is in
7
force; and
8
(b) the person is about to depart from Australia for a foreign
9
country; and
10
(c) the person's departure is authorised by a departure
11
authorisation certificate;
12
an officer (within the meaning of the Customs Act 1901), or a
13
member of the Australian Federal Police, may request the person to
14
give a copy of the certificate to the officer or member for
15
inspection.
16
(2) A person commits an offence of strict liability if:
17
(a) an officer (within the meaning of the Customs Act 1901), or a
18
member of the Australian Federal Police, has made a request
19
of the person under subsection (1); and
20
(b) the person refuses or fails to comply with the request.
21
Penalty for contravention of this subsection: 5 penalty units.
22
Subdivision G--Interpretation
23
43ZB Interpretation--departure from Australia for foreign country
24
A reference in this Division to the departure of a person from
25
Australia for a foreign country is a reference to the departure of the
26
person from Australia for a foreign country, whether or not the
27
person intends to return to Australia.
28
43ZC Meaning of Australia
29
For the purposes of this Division, Australia, when used in a
30
geographical sense, includes the external Territories.
31
Departure prohibition orders Schedule 1
Other amendments Part 2
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
47
Part 2--Other amendments
1
A New Tax System (Family Assistance) Act 1999
2
15 Subsection 3(1) (at the end of the definition of Australia)
3
Add:
4
Note:
In Division 5 of Part 4 of the Family Assistance Administration Act
5
(about departure prohibition orders), Australia has an extended
6
meaning.
7
Student Assistance Act 1973
8
16 Subsection 3(1) (at the end of the definition of Australia)
9
Add:
10
Note:
In Division 4 of Part 6 (about departure prohibition orders), Australia
11
has an extended meaning.
12
Schedule 1 Departure prohibition orders
Part 3 Application provisions
48
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
Part 3--Application provisions
1
17 Application provisions
2
The amendments made by Part 1 of this Schedule apply in relation to:
3
(a) a debt that arises on or after the commencement of this item;
4
and
5
(b) a debt that arose before the commencement of this item, to
6
the extent that the debt was outstanding immediately before
7
that commencement.
8
Removal of 6-year limit on debt recovery Schedule 2
Amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
49
Schedule 2--Removal of 6-year limit on debt
1
recovery
2
Part 1--Amendments
3
A New Tax System (Family Assistance) (Administration) Act
4
1999
5
1 Section 86
6
Repeal the section.
7
2 Subsections 87(3) and (4)
8
Repeal the subsections.
9
3 Subsection 88(1)
10
Omit "(1)".
11
4 Subsections 88(2) to (6)
12
Repeal the subsections.
13
5 Section 90
14
Repeal the section.
15
6 At the end of Division 3 of Part 4
16
Add:
17
93B No time limit on debt recovery action
18
For the purposes of this Part, legal proceedings, or any action
19
under a provision of this Part, for the recovery of a debt may be
20
commenced or taken at any time.
21
7 Paragraph 95(3)(a)
22
Repeal the paragraph.
23
Schedule 2 Removal of 6-year limit on debt recovery
Part 1 Amendments
50
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
Paid Parental Leave Act 2010
1
8 Section 183 (note)
2
Repeal the note.
3
9 Subsection 184(1) (note 1)
4
Omit "Note 1", substitute "Note".
5
10 Subsection 184(1) (note 2)
6
Repeal the note.
7
11 Section 189
8
Repeal the section.
9
12 At the end of Division 5 of Part 4-3
10
Add:
11
192A No time limit on debt recovery action
12
For the purposes of this Part, legal proceedings, or any action
13
under a provision of this Part, for the recovery of a debt may be
14
commenced or taken at any time.
15
13 Paragraph 193(3)(a)
16
Omit ", for example because a time limit for recovery action under that
17
Division has elapsed".
18
Social Security Act 1991
19
14 Subsection 1231(2)
20
Omit "Subject to subsections (2A) to (2E), the", substitute "The".
21
15 Subsections 1231(2A) to (2E)
22
Repeal the subsections.
23
16 Subsection 1232(1)
24
Omit "(1)".
25
Removal of 6-year limit on debt recovery Schedule 2
Amendments Part 1
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
51
17 Subsections 1232(2) to (6)
1
Repeal the subsections.
2
18 Subsections 1233(7A) to (7E)
3
Repeal the subsections.
4
19 At the end of Part 5.3
5
Add:
6
1234B No time limit on debt recovery action
7
For the purposes of this Chapter, legal proceedings, or any action
8
under a provision of this Chapter, for the recovery of a debt or
9
overpayment may be commenced or taken at any time.
10
20 Paragraphs 1236(1B)(a) and (aa)
11
Repeal the paragraphs.
12
Student Assistance Act 1973
13
21 At the end of Division 2 of Part 6
14
Add:
15
42B No time limit on debt recovery action
16
For the purposes of this Part, any action under a provision of this
17
Part for the recovery of a debt may be taken at any time.
18
Schedule 2 Removal of 6-year limit on debt recovery
Part 2 Application provisions
52
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
No. , 2016
Part 2--Application provisions
1
22 Application provisions
--family assistance amendments
2
(1)
The amendments of the A New Tax System (Family Assistance)
3
(Administration) Act 1999 made by this Schedule apply in relation to:
4
(a) a debt that arises on or after the commencement of this item;
5
and
6
(b) a debt that arose before the commencement of this item, to
7
the extent that the debt was outstanding immediately before
8
that commencement.
9
(2)
Paragraph (1)(b) applies in relation to a debt only if, immediately before
10
the commencement of this item, action under section 84, 84A, 87, 87A
11
or 89, or legal proceedings under section 88, of the A New Tax System
12
(Family Assistance) (Administration) Act 1999 could be commenced or
13
taken for the recovery of the debt.
14
23 Application provisions
--paid parental leave amendments
15
(1)
The amendments of the Paid Parental Leave Act 2010 made by this
16
Schedule apply in relation to:
17
(a) a debt that arises on or after the commencement of this item;
18
and
19
(b) a debt that arose before the commencement of this item, to
20
the extent that the debt was outstanding immediately before
21
that commencement.
22
(2)
Paragraph (1)(b) applies in relation to a debt only if, immediately before
23
the commencement of this item, legal proceedings under section 183, or
24
action under section 184, of the Paid Parental Leave Act 2010 could be
25
started or commenced for the recovery of the debt.
26
24 Application provisions
--social security amendments
27
(1)
The amendments of the Social Security Act 1991 made by this Schedule
28
apply in relation to:
29
(a) a debt or overpayment that arises on or after the
30
commencement of this item; and
31
Removal of 6-year limit on debt recovery Schedule 2
Application provisions Part 2
No. , 2016
Social Services Legislation Amendment (Enhanced Welfare Payment
Integrity) Bill 2016
53
(b) a debt or overpayment that arose before the commencement
1
of this item, to the extent that the debt or overpayment was
2
outstanding immediately before that commencement.
3
(2)
Paragraph (1)(b) applies in relation to a debt or overpayment only if,
4
immediately before the commencement of this item, action under
5
section 1231 or 1233, or legal proceedings under section 1232, of the
6
Social Security Act 1991 could be commenced for the recovery of the
7
debt or overpayment.
8
25 Application provision
--student assistance amendments
9
The amendment of the Student Assistance Act 1973 made by this
10
Schedule applies in relation to:
11
(a) a debt that arises on or after the commencement of this item;
12
and
13
(b) a debt that arose before the commencement of this item, to
14
the extent that the debt was outstanding immediately before
15
that commencement.
16